In nominating Alberto Gonzales to be U.S. attorney general, highest law enforcement officer in the country, President George W. Bush flouted not only the laws and treaty commitments of the United States on torture, but more than two hundred years of military tradition as well.
As we noted in “The President’s Lawyer” (December 3, 2004), Gonzales was chief architect of the administration’s policies on handling foreign detainees in the “war on terror.” As White House Counsel, he wrote the notorious 2002 memo describing the Geneva Conventions as “obsolete.” President Bush subsequently ordered that those protections be withheld from prisoners taken in Afghanistan. Gonzales then requested a legal opinion defining torture from the Department of Justice. The response described torture as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” By defining torture so narrowly, the stage was set for approving other practices hitherto recognized as torture. “Waterboarding,” when a prisoner is submerged almost to the point of drowning, was one of twenty “techniques” approved for CIA operatives to use. More than thirty detainees have died in U.S. custody, at least five of them, a Pentagon report determined, from abuse.
The administration’s directives for the use of torture were created in the immediate aftermath of 9/11, when it was feared Islamic terrorists might launch another catastrophic attack on U.S. soil. That period called for cool heads and seasoned judgment. When it came to assessing the need for gathering intelligence and how to treat prisoners allegedly involved in terrorism, the administration panicked, redefining torture, while ignoring the advice of its sagest combat veterans like Colin Powell, who warned against the military and political consequences of winking at torture.
By softening the strictures against “coercive” interrogation techniques, Gonzales and others helped create a climate that led to the abuses in Abu Ghraib, Guantánamo, Afghanistan, and elsewhere. This widespread mistreatment has been detailed in Red Cross reports and internal investigations conducted by the military and the FBI.
The Senate Judiciary Committee had these reports in mind when it pressed Gonzales on his role in outlining the administration’s policy on foreign detainees. Throughout the hearings, Gonzales gave evasive answers to questions about his own opinion on the legality of torture and his role in crafting the permissive policy.
Gonzales’s written responses to the Senate were clearer-and more troubling. In 200-plus pages, the attorney general-designate elaborated on the administration’s policy on alien detainees. That policy allows that noncitizens can be held in undisclosed locations, without legal counsel, for as long as the government likes. The government also reserves the right to export detainees to torture-friendly countries.
According to Gonzales, while the U.S. Armed Forces are barred from cruel, inhumane, or degrading treatment of prisoners by the Uniform Code of Military Justice, CIA operatives are not. Nor is the CIA bound by the president’s February 2002 directive that detainees be treated “humanely.”
Concerning U.S. personnel who are bound by the president’s directive to act humanely, Gonzales responded: “The term ‘humanely’ has no precise legal definition.” Elaborating, he said, “As a policy matter, I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing, and medical care. I understand that the United States is providing this level of treatment for all detainees.” The disingenuousness of this statement is apparent in the abusive behavior of U.S. personnel at Abu Ghraib and other detention centers in the “war on terror”-widespread abuse encouraged and made more probable by such arguments.
No one should make apologies for torture or attempt to create a law-free zone in which it can take place. The use of torture hands Al Qaeda a victory in the battle for the hearts and minds of the Islamic world-a victory we cannot afford to forfeit. Furthermore, not only is torture a gross violation of human dignity, but virtually all military experts judge it ineffective in extracting reliable intelligence. They further argue that employing torture all but assures the maltreatment of our own personnel, should they fall into enemy hands. As Republican Senator Lindsay Graham has pointed out, “You weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be.”
President Bush articulated the ideals of this nation well in his second inaugural address: “In a world moving toward liberty, we are determined to show the meaning and promise of liberty....Every man and woman on this earth has rights and dignity and matchless value because they bear the image of the maker of heaven and earth.” He’s right. But if we are to show the world what freedom can mean, if we are to honor our belief that every person deserves respect as a creature of God, then this nation must clearly and resolutely forsake torture. It is clear Gonzales and the Bush administration have yet to do that.
January 31, 2005